During the 8th Asia-Pacific Victims of Corruption (VoC) meeting, Piseth Duch, the founder of the business and human rights law group, presented the legal standing of VoCs with regard to Cambodia. While his presentation initially provided a robust legal framework for facing corruption at the national level in Cambodia, two case studies proved otherwise. For this reason, Just Access asked whether the ratification of the UNCAC by Cambodia in 2007 had any influence at the national level, and whether the establishment of a Special Rapporteur (SR) for anti-corruption might lead to better results. This blog post will examine the case of Cambodia to understand the concrete influence of the UNCAC at the national level and whether the establishment of a SR for anti-corruption is feasible and, if that is the case, whether it is also desirable.
In Cambodia, there are several ways to initiate civil and criminal proceedings. As it is a civil law system very similar to France’s, the legal standing VoCs is mainly governed by the Criminal Procedure Code and the Anti-Corruption Law (ACL), which was enacted in 2010 due to the high level of corruption in the country.
In addition to the usual remedies provided by civil law, Cambodia has also established an Anti-Corruption Unit (ACU), which is the central institution responsible for investigating and combating corruption. The ACU was established in 2010 along with the enactment of the ACL, demonstrating the Cambodian government’s strong commitment to fighting corruption.1The ACU has several privileges granted to it to ensure that it can effectively carry out its duties. These include privileges in investigating corruption cases, freezing an individual’s assets, and cooperating with public authorities.
Since its establishment, the ACU has gained tremendous public support, both nationally and internationally.2Due to the confidence in the ACU, more and more private sector companies have signed Memorandums of Understanding with it to participate in the fight against corruption and conduct business in a corruption-free environment. The dissemination of the ACL has helped public officials and ordinary citizens to better understand the impact of corruption and actively participate in the fight against this universal social disease.
In addition to efforts to combat corruption at the national level, Cambodia has also ratified the UNCAC in 2007.3 The ratification encouraged Cambodia to develop and implement comprehensive anti-corruption policies and measures, such as those described above. Cambodia has had to take initiatives to improve transparency, accountability and integrity in public administration, as well as to strengthen anti-corruption institutions and mechanisms to comply with the UNCAC. It is also important that the UNCAC has established a monitoring mechanism to better monitor how corruption has been addressed in Cambodia after ratification in 2007.
In its first review,4 the Implementation Review Group relied on a self-assessment checklist that provides very detailed and comprehensive information on the implementation of the UNCAC in Cambodia. The review involved all stakeholders, including the legislative, executive, legal and judicial branches, the private sector, civil society, development partners, and academia.
In addition to pointing out many criticisms of the implementation of the Convention, the Implementation Review Group also highlighted the success of the ACL and ACU. The ACL has proven successful in promoting the effectiveness of all forms of service delivery and strengthening good governance and the rule of law, as well as upholding integrity and justice, which are fundamental to social development and poverty reduction.5
Despite the measures that Cambodia has taken at the national and international levels, the case law clearly shows that there is still much to be done in this regard. Piseth Duch decided to mention two recent cases to show this.
The first case concerned the conviction of the former president of Sovann Komar,6an NGO which works to give a home to orphans and abandoned children. Sovann Komar has asked authorities to expedite the arrest of its former executive director, Sothea Arun, who had been accused of being a child rapist, being corrupt, and embezzling funds from the organisation.7 Police reported that sexually explicit images and videos of children and animals were found on Arun’s desk at his workplace, where he cared for more than 50 orphans and abandoned children. Sovann Komar added that the man had been accused of raping two girls, and one of them was just six years old. The victims testified in court that sexual assault and rape had occurred since their childhood and continued into their teens. Despite there being 2 arrest warrants in force, and even though complaints have been made to the ACU concerning Arun’s conduct with the Ministry of Social Affairs, Veterans and Youth Rehabilitation and other government offices, he remains at large.8
The second case mentioned by Piseth Duch involved Hout Heang, a former judge in Kandal province who was sentenced to two years in prison for bribery.9 He was charged in 2012 and found guilty of threatening a victim to pay him to give her a favorable decision. The victim filed a complaint with the ACU and Judge Heang was found guilty of bribery. Nevertheless, he was pardoned by the king in 2018 and reinstated as a judge because of his strong connections with both the king and the government.
The case law examined during the meeting clearly showed a gap in the anti-corruption system that needs to be addressed. For this reason, Just Access has asked whether it is feasible to establish a SR to fight corruption and, if so, whether it would be useful to better fight corruption in Cambodia.
The question of whether a SR for anti-corruption is needed was addressed at the special session of the Conference of the States Parties to the UNCAC in Sharm El-Sheikh in Egypt on December 15, 2021.10 The issue arose as UNCAC implementers increasingly face pushback, from individual attacks on their work to systematic undermining of anti-corruption institutions. By acting as a focal point for the anti-corruption community, a SR would make all human rights mechanisms more accessible to all involved in the fight against corruption.11
For this reason, even the European Parliament, in a draft report by the Foreign Affairs Committee 2021 12 formulated a recommendation to the European Council to insist on the establishment of a UN SR on Financial Crime, Corruption and Human Rights with a comprehensive mandate that includes a goal-oriented plan and regular assessment of the anti-corruption measures taken by states. Although this recommendation was adopted in 2022,13it is unlikely to be implemented by the European Council because it requires the unanimous support of all 27 member states.
As Transparency International points out, there is enormous potential to link the anti-corruption movement with the opportunities offered by the existing human rights apparatus. The establishment of a SR would be the clearest step forward and the necessary incentive to engage anti-corruption organizations and defenders.
To better understand whether a Special Rapporteur on anti-corruption is feasible and desirable, it is necessary to analyze a report of the Special Rapporteur on the situation of Human Rights Defenders, Mary Lawlor, published in 2022.14 In the report, Mary Lawlor analyzes the situation of human rights defenders (HRDs) working against corruption and emphasizes that the protective framework applicable to HRDs should also apply to them, since this is often not the case.
Indeed, HRDs often work in the anti-corruption field. For example, human rights activists who work to protect the environment and expose corruption in business and development projects, including extractive industries, are often at risk of physical attack, and those who organize protests against corruption can be targeted through surveillance, arrest, and excessive use of force.
The report of the SR concludes that the links between corruption, anti-corruption efforts and human rights are multidimensional but not always fully understood. Anti-corruption activists should be considered HRDs and for this reason should be protected by the existing mandate of SR on the situation of human rights defenders.
In conclusion, steps need to be taken at the national and international levels to improve the legal framework for anti-corruption in Cambodia. First, at the national level, the gap between the law on the books and the law in action needs to be addressed. Second, the appointment of a Special Rapporteur on anti-corruption could help put further international pressure on the country to improve the overall situation. Alternatively, the current mandate of the SR on the situation of human rights defenders should be explicitly extended to also protect those defenders working to combat corruption.